219 Cal. App. 4th 1086
Cal. Ct. App.2013Background
- In 2007 Las Vegas Land and Wilkie entered a purchase agreement for commercial property; sale closed after escrow delays.
- After closing, tenant Levitz filed bankruptcy; Las Vegas Land sued Wilkie for breach and fraud alleging nondisclosure of impending bankruptcy.
- Wilkie moved for summary judgment in December 2010; Las Vegas Land did not file an opposition (counsel appeared at the hearing).
- The trial court granted summary judgment for Wilkie and judgment was entered March 18, 2011.
- Six months later Las Vegas Land moved under Code Civ. Proc. § 473(b) to vacate the summary judgment, arguing attorney error/abandonment and relying on the statute’s mandatory six-month relief when accompanied by an attorney affidavit.
- The trial court denied relief (noting procedural defects and concluding attorney error did not justify setting aside a summary judgment); Las Vegas Land appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandatory provision of § 473(b) applies to summary judgments | § 473(b)’s mandatory six-month relief applies to summary judgments entered after a party fails to timely oppose (Avila supports extension) | Mandatory provision applies only to clerk-entered defaults, default judgments, or dismissals—not summary judgments | Court held § 473(b) mandatory provision does not apply to summary judgments; it is limited to defaults/default judgments/dismissals |
| Whether client abandonment excuses the statutory requirement of an attorney’s affidavit of fault under § 473(b) | Client abandoned by counsel should be excused from producing attorney affidavit and eligible for mandatory relief | Statute’s plain text requires an attorney’s sworn affidavit; no exception for abandonment; other remedies exist (discretionary § 473 relief or malpractice/action against attorney) | Court held no exception; statute requires attorney affidavit and abandonment does not permit mandatory relief; discretionary relief remains available |
| Whether procedural defects (failure to file proposed pleading) warranted denial under § 473(b) | Proposed pleading later filed; court should allow filing and vacate judgment | Motion did not comply with statutory requirement to accompany application with copy of proposed pleading | Court noted failure to timely file proposed pleading provided an independent basis to deny mandatory relief |
| Whether proposed opposition raised triable issues of fact sufficient to defeat summary judgment | Proposed opposition would show triable issues and thus relief would change outcome | Wilkie argued evidence supported summary judgment and proposed opposition lacked admissible evidence to create triable issues | Court observed that even considering the proposed opposition, no admissible evidence raised triable issues; judgment would have been granted on merits |
Key Cases Cited
- English v. IKON Business Solutions, Inc., 94 Cal.App.4th 130 (interpretation that § 473(b) mandatory relief applies only to defaults/default judgments/dismissals)
- Avila v. Chua, 57 Cal.App.4th 860 (argued mandatory § 473(b) relief should apply where summary-judgment dismissal is analogous to default)
- Huh v. Wang, 158 Cal.App.4th 1406 (recent authority rejecting extension of mandatory § 473(b) to summary judgment)
- Prieto v. Loyola Marymount Univ., 132 Cal.App.4th 290 (mandatory provision predicated on clerk-entered default; not applicable to late/no opposition to summary judgment)
- Yeap v. Leake, 60 Cal.App.4th 591 (dissent highlighting limits of mandatory § 473(b) and cautioning against broad expansion)
- Henderson v. Pacific Gas & Electric Co., 187 Cal.App.4th 215 (statutory construction standard; de novo review)